The NSW Court of Appeal upheld the decision of the District Court which found Kmart liable for injuries suffered by a customer who was hit by an oversized shopping item which had fallen from another customer’s trolley while in the self-service area of the Woy Woy store.
In issue
- Whether Kmart had implemented a system to assist customers with large or heavy purchases and if it had, whether a non-mandatory system which was not made known to customers was a sufficient precaution against the relevant risk of harm.
- Identification of the precautions which ought to have been taken by Kmart to avoid the risk of a heavy shopping item falling or tipping from the trolley and whether those precautions, if taken, would have avoided the injuries suffered by Ms Marmara.
- Whether a report of an occupational health and safety expert was admissible in the proceedings.
The background
On 29 September 2018, Ms Rita Marmara was injured when a large box weighing approximately 21.13kg containing a mountain bike fell on her from behind while she was at the self-checkout of the Kmart store in Woy Woy, New South Wales. Ms Marmara was a customer of the store. The mountain bike had fallen from another customer’s shopping trolley in the self-checkout area.
Ms Marmara brought proceedings against Kmart Australia Limited (Kmart) in the District Court of NSW seeking damages against Kmart for breach of duty of care to her as occupier of the store. Ms Marmara was successful in her claim, and was awarded damages of $624,775.60 plus her legal costs.
The decision at trial
Evidence was given during the trial in Ms Marmara’s case by an occupational health and safety expert, Mr Frank Jordan. Mr Jordan gave evidence that although there was no recognised industry standard for the purchase and removal of heavy items at department stores, he had made telephone enquiries of other major department stores such as Aldi which revealed that those stores had implemented various measures of their own, such as preventing customers from moving large items without the assistance of a staff member.
Kmart led evidence, through one of its employees, that it was open to customers of the store to ask staff to take heavy products to the loading dock to be later delivered to them at their car, so that they would not have to handle those products during the purchase process. There were no signs at the store alerting customers to this service.
The trial Judge held Kmart liable for Ms Marmara’s injuries. The trial judge found that Kmart should have trained its staff in safe practices for heavy items, alerted customers to those practices by placing notices on the wall, used flatbed trolleys or implemented a system of collection of heavy items at the loading dock.
The decision on appeal
Kmart appealed the decision in relation to liability. The principal issues on appeal were whether the report of Mr Jordan should have been admitted into evidence, whether Kmart had breached its duty of care to Ms Marmara and whether any breach of duty was causative of Ms Marmara’s injuries.
The NSW Court of Appeal dismissed the appeal, holding as follows:
- The report of Mr Jordan was admissible under section 79 of the Evidence Act because Mr Jordan held specialised knowledge in matters concerning occupational health and safety, and his ultimate opinions were substantially based on that specialised knowledge. Whilst an expert is not precluded from making his or her own further factual enquiries in order to form their opinion, the facts that are sought to be relied upon must be separately proven. The evidence given by Mr Jordan at trial of procedures implemented by Kmart’s competitors was admitted as evidence of the facts without objection, which was fatal to the challenge to that evidence on appeal.
- Kmart’s system or procedure for moving and purchasing heavy products was insufficient. The existing loading dock procedure was not mandatory, was not drawn to customers’ attention by signage and had to be initiated by individual customers. A reasonable occupier in Kmart’s position would have required customers to collect heavy items from the loading dock. Implicit in that direction would have been a prohibition on customers using standard-sized trolleys to transport heavy, oversized items through the store. In failing to take these precautions, Kmart breached its duty of care to Ms Marmara. Had the loading dock procedure been mandatory, on the balance of probabilities, Ms Marmara’s injuries would have been avoided.
Implications for you
- Retailers of large or bulky goods where customers self-serve should consider clearly communicated mandatory collection procedures, staff training and appropriate assistance including suitable trolleys.
- The decision also highlights the importance of ensuring that all of the factual material relied upon by an expert can be independently proven.
Kmart Australia Limited v Marmara [2024] NSWCA 249
